Daniel Martin Galluccio v. Carolyn W. Colvin

Filing 23

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DANIEL MARTIN GALLUCCIO, 11 CASE NO. CV 17-0409 SS Plaintiff, 12 v. 13 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 14 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Daniel Martin Galluccio (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Acting Commissioner of 23 Social 24 applications 25 Supplemental Security Income (“SSI”). Security for (the “Commissioner” Disability or Insurance “Agency”) denying his Benefits (“DIB”) and The parties consented, 26 1 27 28 Nancy A. Berryhill, Acting Commissioner of Social Security, is substituted for her predecessor Carolyn W. Colvin, whom Plaintiff named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 1 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 2 undersigned United States Magistrate Judge. 3 For the reasons stated below, the Court AFFIRMS the Commissioner’s 4 decision. (Dkt. Nos. 7, 12, 13). 5 6 II. 7 PROCEDURAL HISTORY 8 9 On January 15, 2013, Plaintiff filed applications for 10 Disability Insurance Benefits (“DIB”) and Supplemental Security 11 Income (“SSI”) pursuant to Titles II and XVI of the Social Security 12 Act alleging a disability onset date of January 31, 2013. 13 201). 14 and 15 Plaintiff requested a hearing before an Administrative Law Judge 16 (“ALJ”) (AR 120-22), which took place on June 18, 2015 (AR 29-52). 17 The ALJ issued an adverse decision on July 16, 2015, finding that 18 Plaintiff was not disabled because he could perform his past 19 relevant work. 20 Council denied Plaintiff’s request for review. 21 action followed on January 18, 2017. on (AR 194- The Commissioner denied Plaintiff’s applications initially reconsideration. (AR 15-23). (AR 97-101, 106-11). Thereafter, On December 5, 2016, the Appeals (AR 1-8). This 22 23 III. 24 FACTUAL BACKGROUND 25 26 Plaintiff was born on September 21, 1952. (AR 31, 194, 196). 27 He was sixty-two years old when he appeared before the ALJ on June 28 18, 2015. (AR 15). Plaintiff has a college degree. 2 (AR 33). He 1 is married and lives with his wife. (AR 266). Plaintiff previously 2 worked 3 disability 4 pressure, limited range of motion, scoliosis, arthritis, partial 5 deafness in left ear, and depression. as a sales due representative. to: sleep apnea, (AR asthma, 21-22). obesity, He alleges high blood (AR 266). 6 7 A. Plaintiff’s Testimony 8 9 Plaintiff testified that he is unable to work because of 10 fatigue and an inability to focus. (AR 39, 48). Because of back 11 and hip pain, Plaintiff is unable to sit for more than thirty 12 minutes before needing to walk around. 13 walk for only four to five blocks before needing to rest. 14 44). 15 Because of his sleep apnea, he gets only four to five hours of 16 interrupted sleep. 17 in both feet, which he can alleviate by raising his legs. (AR 35-36, 39-41). Plaintiff also has difficulty bending and stooping. (AR 37, 47). He can (AR 36, (AR 36). Plaintiff’s edema causes swelling (AR 42). 18 19 During a typical day, Plaintiff testified that he uses the 20 computer and reads. (AR 39). He can make his own breakfast and 21 is sometimes able to walk the dog. 22 vision, Plaintiff is able to drive. (AR 39). Despite his monocular (AR 38-39). 23 24 B. Plaintiff’s Statements 25 26 Plaintiff completed an Adult Function Report on May 5, 2013. 27 (AR 266-74). He asserted that he is unable to work due to lethargy 28 and weakness from his sleep apnea and asthma. (AR 266). He suffers 3 1 from continuous back pain and limited range of motion due to 2 scoliosis and arthritis. 3 walk the dog, take out the trash, and do laundry and dishes, but 4 has difficulty tying his shoes. 5 for groceries, prescriptions and household goods and attends church 6 on a regular basis. 7 his physical impairments affect his ability to lift, squat, bend, 8 stand, reach, walk, sit, kneel, climb and hear, he is able to lift 9 forty to fifty pounds and can walk one-half mile before needing to 10 rest. (AR 266). He is able to make breakfast, (AR 267-68). (AR 269-70). He is able to shop While Plaintiff asserts that (AR 271). 11 12 Plaintiff completed a Pain Questionnaire on May 6, 2013. (AR 13 277-79). He described suffering daily from dull to sharp pain in 14 his back that sometimes spreads to his shoulder and hip. 15 The pain is somewhat relieved by Advil or Motrin. 16 Stretching and vibrating massages are also helpful in relieving 17 the pain. 18 but can do errands, such as the grocery shopping, and use public 19 transportation without assistance. 20 forty pounds, walk less than a mile, stand five to ten minutes at 21 a time, and sit fifteen to twenty minutes at a time. 22 Plaintiff also completed an Adult Asthma Questionnaire. 23 82). 24 emergency room visits or hospitalizations for his asthma. 25 281). (AR 278). (AR 277). (AR 277). Plaintiff has difficulty picking things up (AR 279). He can lift up to (AR 279). (AR 280- He asserted having monthly asthma attacks but denied and 26 27 28 4 (AR 1 C. Plaintiff’s Spouse’s Statement 2 3 On May 5, 2013, Idamary Galluccio, Plaintiff’s spouse, 4 completed a Third Party Function Report. (AR 257-65). She asserted 5 that Plaintiff often dozes off and has trouble concentrating. 6 257). 7 impairments affect his ability to lift, squat, bend, stand, walk, 8 sit, kneel, hear, climb and concentrate. He cannot sit for long periods. (AR 261). (AR His physical (AR 262). 9 10 Plaintiff is able to dress, bathe, care for hair, shave, 11 feed himself and use the toilet without assistance. 12 also performs household chores, including preparing meals, doing 13 laundry and dishes, walking the dog, shopping for groceries and 14 taking out trash, on a regular basis. 15 able to walk, drive and use public transportation on his own. 16 260). He attends church and the senior clubhouse on a regular basis 17 without assistance. (AR 258-60). (AR 258). He Plaintiff is (AR (AR 261). 18 19 D. Treatment History 20 21 In March 2010, Plaintiff was diagnosed with severe sleep 22 apnea, causing fatigue and depression. 23 (A sleep study performed in February 2014 concluded that Plaintiff 24 has “severe, non-positional obstructive sleep apnea.”). 25 26 27 28 5 (AR 395); (see also AR 437) In May 1 2010, Plaintiff reported increased energy and less fatigue while 2 using a CPAP machine.2 (AR 396). 3 4 On May 11, 2011, Plaintiff complained of pain in his right 5 hip, right knee, lower back and right shoulder. (AR 393). 6 examination, Michael A. Samuelson, M.D., found full active range 7 of motion with no tenderness in Plaintiff’s right shoulder, full 8 range of motion with no tenderness or swelling in the right knee, 9 and limited range of motion in the right hip. (AR 393). On Dr. 10 Samuelson also found decreased range of motion secondary to pain 11 in the lumbar spine. 12 was 13 extremities, and Plaintiff had full strength in his quadriceps, 14 extensor hallucis longus,3 and gastro soleus.4 (AR 393). Plaintiff 15 ambulated with a slow, guarded gait. 16 right hip moderate arthritis, minimal arthritic changes in the 17 lumbar spine and knees, and a normal right shoulder. 18 Dr. Samuelson assessed bilateral knee and right hip osteoarthritis, 19 lumbar degenerative disc disease and right shoulder impingement. 20 21 22 23 negative with (AR 393). normal Nevertheless, a straight leg raise sensation throughout (AR 393). the lower X-rays indicated (AR 393). 22 “Continuous positive airway pressure (CPAP) therapy is a common treatment for obstructive sleep apnea. A CPAP machine uses a hose and mask or nosepiece to deliver constant and steady air pressure.” <https://www.mayoclinic.org/diseases-conditions/sleep-apnea/indepth/cpap/art-20044164> (last visited Nov. 29, 2017). 3 24 25 “The extensor hallucis longus muscle extends the foot’s big toe.” <https://www.healthline.com/human-body-maps/extensor-hallucis-longusmuscle> (last visited Nov. 29, 2017). 4 26 27 28 The gastro soleus is one of several muscles that flex the leg at the knee “in addition to assisting propulsion and stabilisation [sic] during the actions of walking, running and jumping.” <http://www.musclesused.com/gastrocnemius-soleus-calf-muscles/> (last visited Nov. 29, 2017). 6 1 (AR 393). He recommended that Plaintiff undergo a lap band 2 procedure to address Plaintiff’s obesity. (AR 393). 3 4 On January 9, 2013, Plaintiff complained of back pain, leg 5 swelling and insomnia. (AR 312). Jimmy Soliman, M.D., diagnosed 6 sleep apnea, morbid obesity, scoliosis, degenerative joint disease, 7 asthma and leg edema. (AR 312). 8 Maxide5 dosage and recommended regular exercise, leg elevation and 9 weight loss. Dr. Soliman increased Plaintiff’s (AR 313). 10 11 On June 1, 2013, John Sedgh, M.D., reviewed the medical record 12 and performed an internal medicine consultative examination on 13 behalf of the Agency. 14 sleep apnea is improved with the use of a CPAP machine, although 15 he still experiences some sleepiness during the day. 16 He uses an inhaler for his asthma but experiences shortness of 17 breath after walking a couple blocks. 18 complained of pain in his mid to lower back with radiation to his 19 hip but denied needing an assistive device. (AR 414-19). Plaintiff reported that his (AR 414). (AR 414). Plaintiff (AR 414). 20 21 On examination, Dr. Sedgh found normal range of motion in the 22 cervical spine, shoulders, elbows, wrists, hips, knees and ankles. 23 (AR 416-17). 24 with flexion at 65/90 degrees, extension 15/30 degrees and lateral 25 flexion at 20/30 degrees. 26 5 27 28 The range of motion in the lumbar spine was limited (AR 416). A straight-leg-raising test Maxide, a common misspelling of Maxzide (hydrochlorothiazide), “is used to treat fluid retention (edema) and high blood pressure (hypertension).” <http://www.musclesused.com/gastrocnemius-soleus-calf-muscles/> (last visited Nov. 29, 2017). 7 1 was negative. (AR 416). Plaintiff had full motor strength in all 2 extremities but mild to moderate edema in his lower extremities. 3 (AR 417). Dr. Sedgh’s clinical impression included hypertension, 4 sleep apnea, asthma, scoliosis of the back and hearing loss. 5 418). 6 of work at the medium exertional level subject to environmental 7 and 8 crouching and stooping should be limited to frequent. (AR He opined that Plaintiff is capable of performing a range postural restrictions. (AR 418). Plaintiff’s kneeling, (AR 418). 9 10 On July 23, 2013, V. Phillips, M.D., a nonexamining state 11 agency consultant, reviewed the medical record and completed a 12 Disability Determination Explanation statement. (AR 53-64). 13 Phillips of 14 limited range of medium work. 15 to frequent climbing, balancing, stooping, kneeling, crouching and 16 crawling and should avoid concentrated exposure to extreme cold 17 and extreme heat. 18 M.D., another nonexamining state agency consultant, affirmed Dr. 19 Phillips’s findings. concluded that Plaintiff (AR 62). is capable (AR 61-62). Dr. performing a Plaintiff is limited On December 2, 2013, B. Vaghaiwalla, (AR 79-86). 20 21 Farhad Contractor, M.D. performed X-rays of Plaintiff’s 22 thoracic and lumbar spine on May 2, 2014. 23 rays revealed degenerative and arthritic changes at L5-S1 and 24 degenerative changes at T12-L1, with no nerve impact evident. 25 457-58). 26 degenerative disc disease, lumbar spondylosis, facet arthritis at 27 L5-S1 and rotatory scoliosis due to muscle spasm. Dr. Contractor’s clinical 28 8 (AR 457-58). impression The X- (AR included (AR 458). 1 Primary care records during May and June 2014 indicated no 2 significant functional limitations and conservative treatment. (AR 3 440-52). 4 joint pain, joint swelling, muscle pain, muscular weakness, limited 5 range of motion and muscle cramps. On May 30 and June 12, 2014, Plaintiff denied fatigue, (AR 445, 447). 6 7 On December 17, 2014, Gerald W. Cara, M.D., conducted an 8 orthopedic examination. (AR 460). Plaintiff complained of lumbar 9 spine pain and stated that he has sleep apnea. (AR 460). On 10 examination, Dr. Cara found Plaintiff to be morbidly obese, with 11 marked restriction of motion in the lumbar spine, pitting edema in 12 the lower extremities and areflexic deep tendon reflexes. 13 460). 14 with an MRI study. 15 Kincaid, M.D., performed an MRI of Plaintiff’s lumbar spine. 16 461-62). 17 moderate degenerative changes at L4-S1, with 2-3mm disc protrusions 18 causing mild canal stenosis and minimal foraminal narrowing. 19 462). 20 Plaintiff be referred to a spine surgeon (AR 459), but the record 21 documents no further treatment. (AR Dr. Cara recommended that Plaintiff be further evaluated (AR 460). On January 15, 2015, Patricia (AR Dr. Kincaid’s clinical impression included mild-to- (AR On the basis of the MRI study, Dr. Cara recommended that 22 23 IV. 24 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 25 26 To qualify for disability benefits, a claimant must 27 demonstrate a medically determinable physical or mental impairment 28 that prevents the claimant from engaging in substantial gainful 9 1 activity and that is expected to result in death or to last for a 2 continuous period of at least twelve months. 3 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 4 The impairment must render the claimant incapable of performing 5 work 6 employment that exists in the national economy. 7 180 8 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 9 10 To decide if a claimant is entitled to benefits, an ALJ 11 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 12 The steps are: 13 14 (1) Is the claimant presently engaged in substantial gainful 15 activity? 16 not, proceed to step two. 17 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 18 claimant is found not disabled. 19 severe? If not, If the three. 20 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 21 specific impairments described in 20 C.F.R. Part 404, 22 Subpart P, Appendix 1? 23 disabled. 24 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 25 so, the claimant is found not disabled. 26 to step five. 27 28 10 If not, proceed 1 (5) Is the claimant able to do any other work? 2 claimant is found disabled. 3 If not, the If so, the claimant is found not disabled. 4 5 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 6 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 7 (g)(1), 416.920(b)-(g)(1). 8 9 The claimant has the burden of proof at steps one through four 10 and the 11 Bustamante, 262 F.3d at 953-54. 12 affirmative duty to assist the claimant in developing the record 13 at every step of the inquiry. 14 claimant meets his or her burden of establishing an inability to 15 perform past work, the Commissioner must show that the claimant 16 can perform some other work that exists in “significant numbers” 17 in 18 residual functional capacity (“RFC”), age, education, and work 19 experience. 20 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 21 may do so by the testimony of a VE or by reference to the Medical- 22 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 23 Appendix 2 (commonly known as “the grids”). 24 240 F.3d 1157, 1162 (9th Cir. 2001). 25 exertional (strength-related) and non-exertional limitations, the 26 Grids are inapplicable and the ALJ must take the testimony of a 27 vocational expert (“VE”). the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 28 11 1 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 2 1988)). 3 4 V. 5 THE ALJ’S DECISION 6 7 The ALJ employed the five-step sequential evaluation process 8 and concluded that Plaintiff was not disabled within the meaning 9 of the Social Security Act. Plaintiff met the (AR 22). insured At step one, the ALJ found 10 that status requirements through 11 September 30, 2017, and had not engaged in substantial gainful 12 activity since January 31, 2010, the alleged disability onset date. 13 (AR 16). 14 spondylosis, herniated discs at L4-5 and L5-S1 with stenosis, 15 morbid obesity, obstructive sleep apnea, hypertension, asthma and 16 loss of vision in the right eye are severe impairments. 17 At step three, the ALJ determined that Plaintiff does not have an 18 impairment or combination of impairments that meet or medically 19 equal the severity of any of the listings enumerated in the 20 regulations. (AR 19). At step two, the ALJ found that Plaintiff’s lumbar (AR 18). 21 22 The ALJ then assessed Plaintiff’s RFC and concluded that he 23 can perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 24 416.967(b),6 except: 25 26 27 28 6 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg 12 1 [Plaintiff] can stand and/or walk for six hours, and sit 2 for six hours, in an eight-hour workday with normal 3 breaks; 4 cannot climb ladders, ropes or scaffolds; cannot crawl; 5 and should have no exposure to dangerous machinery, 6 unprotected heights, dusts, fumes, or extremes of heat 7 or cold. 8 performance of jobs requiring only monocular vision. can perform occasional postural maneuvers; [Plaintiff] is additionally limited to the 9 10 (AR 19). At step four, the ALJ found that Plaintiff was capable 11 of performing his past relevant work as a sales representative, 12 which does not require the performance of work-related activities 13 precluded by Plaintiff’s RFC. 14 that Plaintiff was not under a disability as defined by the Social 15 Security Act from January 31, 2010, through the date of the ALJ’s 16 decision. (AR 21). Accordingly, the ALJ found (AR 22). 17 18 VI. 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner’s decision to deny benefits. “[The] court may set 23 aside the Commissioner’s denial of benefits when the ALJ’s findings 24 are based on legal error or are not supported by substantial 25 evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 26 27 28 controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 13 1 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 2 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 3 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 4 5 “Substantial evidence is more than a scintilla, but less than 6 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 7 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 8 evidence which a reasonable person might accept as adequate to 9 support a conclusion.” (Id.). It is “relevant To determine whether substantial 10 evidence supports a finding, the court must “‘consider the record 11 as a whole, weighing both evidence that supports and evidence that 12 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 13 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 14 1993)). 15 or reversing that conclusion, the court may not substitute its 16 judgment for that of the Commissioner. 17 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 18 1457 (9th Cir. 1995)). If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 19 20 VII. 21 DISCUSSION 22 23 Plaintiff contends that the ALJ erred for the following three 24 reasons: (1) the ALJ erred in rejecting Plaintiff’s testimony 25 regarding his subjective symptoms and functional limitations; (2) 26 the ALJ erred in the determination of Plaintiff’s RFC; and (3) the 27 ALJ erred in relying on the VE’s response to the ALJ’s incomplete 28 hypothetical question. (Dkt. No. 21 at 2-14). 14 1 2 A. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Specific, Clear and Convincing 3 4 Plaintiff asserted that he is unable to work due to lethargy 5 and weakness from his sleep apnea and asthma. (AR 266). He suffers 6 from continuous back pain and has limited range of motion due to 7 his scoliosis and arthritis. 8 that because of his back and hip pain, he is unable to sit for more 9 than thirty minutes before needing to move around. (AR 266, 277). Plaintiff testified (AR 35-36, 39- 10 41; see id. 279). He can walk for only four to five blocks before 11 needing to rest. (AR 36, 44; see id. 271). 12 bending, stooping and picking things up. 13 ALJ found Plaintiff’s statements “not entirely credible insofar as 14 they are not corroborated by the medical evidence of record and 15 [Plaintiff’s] reported and demonstrated activity level.” He has difficulty (AR 36, 271, 279). The (AR 20). 16 17 1. Standards 18 19 When assessing a claimant’s credibility regarding subjective 20 pain or intensity of symptoms, the ALJ must engage in a two-step 21 analysis. 22 First, the ALJ must determine if there is medical evidence of an 23 impairment that could reasonably produce the symptoms alleged. 24 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 25 analysis, the claimant is not required to show that her impairment 26 could reasonably be expected to cause the severity of the symptom 27 she has alleged; she need only show that it could reasonably have 28 caused some degree of the symptom.” Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). 15 “In this Id. (emphasis in original) 1 (citation omitted). “Nor must a claimant produce objective medical 2 evidence of the pain or fatigue itself, or the severity thereof.” 3 Id. (citation omitted). 4 5 If the claimant satisfies this first step, and there is no 6 evidence of malingering, the ALJ must provide specific, clear and 7 convincing reasons for rejecting the claimant’s testimony about 8 the symptom severity. 9 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 10 claimant’s testimony regarding the severity of her symptoms only 11 if he makes specific findings stating clear and convincing reasons 12 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 13 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 14 based on affirmative evidence thereof, he or she may only find an 15 applicant 16 credibility and stating clear and convincing reasons for each.”). 17 “This is not an easy requirement to meet: The clear and convincing 18 standard is the most demanding required in Social Security cases.” 19 Garrison, 759 F.3d at 1015 (citation omitted). not Trevizo, 874 F.3d at 678 (citation omitted); credible by making specific findings as to 20 21 22 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 23 24 (1) ordinary techniques of credibility evaluation, such 25 as 26 inconsistent 27 other testimony by the claimant that appears less than 28 candid; the claimant’s (2) reputation statements concerning unexplained or 16 for the lying, prior symptoms, inadequately and explained 1 failure to seek treatment or to follow a prescribed 2 course 3 activities. of treatment; and (3) the claimant’s daily 4 5 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 6 omitted). 7 conduct, or internal contradictions in the claimant’s testimony, 8 also may be relevant. 9 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th 10 1997). In addition, the ALJ may consider the observations of 11 treating and examining physicians regarding, among other matters, 12 the functional restrictions caused by the claimant’s symptoms. 13 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 14 it is improper for an ALJ to reject subjective testimony based 15 “solely” on its inconsistencies with the objective medical evidence 16 presented. 17 (9th Cir. 2009) (citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 18 19 Further, the ALJ must make a credibility determination with 20 findings that are “sufficiently specific to permit the court to 21 conclude that the ALJ did not arbitrarily discredit claimant’s 22 testimony.” 23 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 24 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 25 credible must be sufficiently specific to allow a reviewing court 26 to conclude the adjudicator rejected the claimant’s testimony on 27 permissible grounds and did not arbitrarily discredit a claimant’s 28 testimony regarding pain.”) (citation omitted). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 17 Although an ALJ’s 1 interpretation of a claimant’s testimony may not be the only 2 reasonable one, if it is supported by substantial evidence, “it is 3 not [the court’s] role to second-guess it.” 4 261 F.3d 853, 857 (9th Cir. 2001). Rollins v. Massanari, 5 6 2. 7 Factors Supporting The ALJ’s Adverse Credibility Determination 8 9 The ALJ provided two specific, clear and convincing reasons 10 to find Plaintiff’s complaints of difficulties with maneuvering 11 and exertion not entirely credible. 12 are sufficient to support the Commissioner’s decision. (AR 20-21). These reasons 13 14 a. 15 Reported Symptoms Not Corroborated By Medical Record 16 17 The ALJ found Plaintiff not entirely credible because his 18 reported symptoms were not corroborated by the medical evidence of 19 record. 20 sufficient specificity that contradicted Plaintiff’s allegations 21 of significant difficulties with maneuvering and exertion. (AR 20- 22 21). (AR 20). The ALJ identified multiple medical records with 23 24 First, the ALJ found that Plaintiff’s medical care was limited 25 and intermittent. (AR 20). An “unexplained, or inadequately 26 explained, failure to seek treatment may be the basis for an adverse 27 credibility finding.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 28 18 1 2007) (citation omitted); Social Security Ruling (“SSR”) 16-3p,7 2 at *9 (S.S.A. Oct. 25, 2017) (“if the frequency or extent of the 3 treatment sought by an individual is not comparable with the degree 4 of the individual’s subjective complaints, . . . [the Agency] may 5 find the alleged intensity and persistence of an individual’s 6 symptoms are inconsistent with the overall evidence of record”). 7 While Plaintiff alleges an onset of disability as of January 1, 8 2010, the medical record is sparse prior to May 2011. 9 generally id. 309-462). Plaintiff’s (AR 20; see Moreover, the ALJ noted significant gaps 10 in medical record. (AR 20-21) (no significant 11 treatment records between May 2011 and January 2013, between June 12 2014 and January 2015, and after January 2015). 13 identifies a single October 2012 medical record (Dkt. No. 21 at 14 4), this record appears to be no more than a routine physical 15 examination. While Plaintiff (AR 309-11). 16 17 Second, the ALJ found inconsistencies between Plaintiff’s 18 testimony 19 “Contradiction with the medical record is a sufficient basis for 20 rejecting the claimant’s subjective testimony.” 21 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see 22 SSR 16-3p, at *5 (“objective medical evidence is a useful indicator 23 to 24 persistence of symptoms, including the effects those symptoms may help and make the objective reasonable medical conclusions evidence. about the (AR 20-21). Carmickle v. intensity and 25 7 26 27 28 Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray, 554 F.3d at 1224. They “reflect the official interpretation of the [Agency] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Id. (citation omitted). 19 1 have on the ability to perform work-related activities”). 2 May 2011 orthopedic examination found decreased range of motion in 3 Plaintiff’s lumbar spine and right hip, he had full range of motion 4 in his right shoulder and right knee. 5 Further, a straight-leg-raising test was negative and Plaintiff 6 had full strength in his lower extremities. 7 2013 examination, Plaintiff was in no acute distress, and he 8 demonstrated 9 (citing id. 416-18). adequate gait and While a (AR 20) (citing id. 393). maneuvering (AR 393). ability. In a June (AR 20) While Plaintiff had reduced range of motion 10 in his lumbar spine, he had full range of motion in his cervical 11 spine, shoulders, elbows, wrists, hips, knees and ankles and a 12 straight-leg-raising test was negative. 13 primary care records during May and June 2014 indicated that 14 Plaintiff had no significant functional limitations. 15 (citing id. 440-52). 16 fatigue, joint pain or swelling, muscle pain, cramps or weakness, 17 and limited range of motion. (AR 416-17). Moreover, (AR 21) Indeed, during those visits, Plaintiff denied (AR 445, 447). 18 19 Plaintiff contends that the ALJ “cited to isolated pieces of 20 evidence, . . . yet failed to consider that the objective medical 21 evidence of record supported Plaintiff’s testimony regarding his 22 subjective symptoms and functional limitations.” 23 7-8). 24 reiterates 25 obstructive sleep apnea, degenerative disc disease, severe lumbar 26 spondylosis, stenosis and edema. 27 edema, the ALJ found all of these impairments to be severe. 28 18). (Dkt. No. 21 at However, in support of this assertion, Plaintiff merely that he was diagnosed with morbid obesity, (Id. at 7, 8-9). severe Other than (AR Plaintiff fails to identify any objective evidence, including 20 1 physical examination findings or diagnostic tests, that contradicts 2 the evidence cited by the ALJ. 3 4 Plaintiff also contends that it was “improper for the ALJ to 5 discredit Plaintiff’s testimony based merely on a 6 corroborating objective evidence.” 7 ALJ “may not reject a claimant’s subjective complaints based solely 8 on a lack of objective medical evidence to fully corroborate the 9 claimant’s allegations,” (Dkt. No. 21 at 8). lack of While the Bray, 554 F.3d at 1227, the ALJ “must 10 consider whether an individual’s statements about the intensity, 11 persistence, and limiting effects of his or her symptoms are 12 consistent 13 record,” SSR 16-3p, at *5 (emphasis added). 14 reject 15 evidence to support Plaintiff’s allegations. Instead, the ALJ 16 discredited Plaintiff’s statements because they are inconsistent 17 with the medical signs and laboratory findings in the record. with the Plaintiff’s medical subjective signs and symptoms laboratory findings of Here, the ALJ did not because of a lack of 18 19 Finally, the ALJ noted Plaintiff’s conservative treatment 20 history. (AR 20-21). The Ninth Circuit has concluded that 21 “evidence of conservative treatment is sufficient to discount a 22 claimant’s testimony regarding severity of an impairment.” 23 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted); 24 see Tommasetti, 553 F.3d at 1039-40 (ALJ may properly infer that 25 claimant’s pain “was not as all-disabling as he reported in light 26 of the fact that he did not seek an aggressive treatment program” 27 and “responded favorably to conservative treatment”); Meanel v. 28 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999), as amended (June 22, 21 Parra 1 1999) (“Meanel’s claim that she experienced pain approaching the 2 highest 3 conservative 4 Plaintiff’s orthopedic surgeon recommended only that Plaintiff 5 consider lap band surgery. 6 2013, Plaintiff’s primary care doctor merely increased Plaintiff’s 7 edema medication and recommended regular exercise and weight loss. 8 (AR 20) (citing id. 313). 9 2015 recommended that Plaintiff be evaluated by a spine surgeon, level imaginable treatment’ was that inconsistent she with received.”). the In ‘minimal, May (AR 20) (citing id. 393). 2011, In June While an orthopedic surgeon in January 10 the record reflects no further treatment. (AR 21) (citing id. 11 459). 12 by an unexplained, or inadequately explained, failure to follow a 13 prescribed 14 (citation and alterations omitted). “A claimant’s subjective symptom testimony may be undermined course of treatment.” Trevizo, 871 F.3d at 679 15 16 The ALJ properly could find, on the basis of Plaintiff’s 17 inconsistent and conservative treatment history, that Plaintiff’s 18 testimony 19 maneuvering and exertion were not entirely credible. and statements regarding his difficulties with 20 21 b. 22 Reported Symptoms Inconsistent With Demonstrated Activity Level 23 24 The ALJ also found Plaintiff not entirely credible because 25 his reported symptoms were inconsistent with his acknowledged daily 26 activities. 27 daily 28 because impairments that would unquestionably preclude work and “ALJs must be especially cautious in concluding that activities are inconsistent 22 with testimony about pain, 1 all the pressures of a workplace environment will often be 2 consistent with doing more than merely resting in bed all day.” 3 Garrison, 759 F.3d at 1016. 4 consider the claimant’s daily activities in weighing credibility. 5 Tommasetti, 533 F.3d at 1039. 6 is inconsistent with the claimant’s asserted limitations, it has a 7 bearing on credibility. Nevertheless, an ALJ properly may If a claimant’s level of activity Garrison, 759 F.3d at 1016. 8 9 Here, the ALJ determined that despite Plaintiff’s alleged 10 disabling difficulties 11 acknowledged engaging in daily activities, including self-care, 12 housework, errands and social and leisure activities that were 13 inconsistent with his alleged disabilities. 14 testified that he walks his dog and is able to drive. 15 He is able to make breakfast, take out the trash, do laundry and 16 dishes. 17 household goods, attends church on a regular basis and is able to 18 use public transportation. 19 between Plaintiff’s alleged disabilities and his daily activities 20 supports the ALJ’s determination that Plaintiff is not entirely 21 credible. (AR 267-68). with maneuvering and exertion, (AR 20). he Plaintiff (AR 38-39). He shops for groceries, prescriptions and (AR 269-70, 279). The discrepancy 22 23 Plaintiff contends that the ALJ “did not elaborate on which 24 specific activities conflicted with which part of Plaintiff’s 25 testimony.” 26 that engaging in daily activities such as self-care, housework, 27 walking, driving, using public transportation, shopping and social 28 and leisure activities, to which Plaintiff acknowledged in his May (Dkt. No. 21 at 10). 23 To the contrary, the ALJ found 1 2013 Function 2 including difficulties with maneuvering and exertion, that he 3 claimed 4 testified. 5 for this Court to conclude that the ALJ rejected Plaintiff’s 6 testimony “on permissible grounds.” in Report, his May undermined 2013 (AR 20). Pain his disabling Questionnaire and limitations, to which he The ALJ’s finding is “sufficiently specific” Brown-Hunter, 806 F.3d at 493. 7 8 Plaintiff also contends that the ALJ did not explain “how 9 Plaintiff’s activities might be transferable to a work setting.” 10 (Dkt. No. 21 at 10). 11 that 12 benefits, and many home activities may not be easily transferable 13 to 14 periodically or take medication.” 15 The 16 inconsistent 17 limitations, and was not required to offer any further discussion 18 of the daily activities. 19 consider 20 including . . . 21 symptoms”) (citation omitted). claimants a work ALJ be “The Social Security Act does not require utterly environment properly a where found with range prior incapacitated that it might of be be eligible impossible to for rest Smolen, 80 F.3d at 1284 n.7. Plaintiff's Plaintiff’s to daily activities allegations of are disabling See Ghanim, 763 F.3d at 1163 (“ALJ may factors inconsistent in assessing statements credibility, concerning the 22 23 c. 24 The ALJ Provided A Germane Explanation For Rejecting Plaintiff’s Spouse’s Statement 25 26 Plaintiff contends that the ALJ improperly rejected the May 27 2013 statement of his wife, Idamary Galluccio. 28 11). (Dkt. No. 21 at “A germane explanation is required to reject lay witness 24 1 testimony.” 2 2017). Plaintiff’s spouse’s statement largely parroted Plaintiff’s 3 allegations 4 limitations. 5 Plaintiff acknowledges that his wife merely “corroborated” his 6 allegations. 7 Galluccio’s statement, giving it “[l]imited weight . . . inasmuch 8 as it essentially reiterates [Plaintiff’s] subjective allegations, 9 which are Leon v. Berryhill, 874 F.3d 1130, 1134 (9th Cir. regarding not his subjective symptoms and functional (Compare AR 257-65, with id. 266-74). (Dkt. No. 21 at 11). fully corroborated The ALJ reviewed Idamary by the medical evidence as 10 articulated herein.” 11 rejected Idamary Galluccio’s statement. 12 (“if an ALJ provided clear and convincing reasons for rejecting a 13 claimant’s subjective complaints, and lay testimony was similar to 14 such complaints, it follows that the ALJ also gave germane reasons 15 for rejecting the lay witness testimony”); Valentine v. Comm’r Soc. 16 Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In light of our 17 conclusion that the ALJ provided clear and convincing reasons for 18 rejecting Valentine’s own subjective complaints, and because Ms. 19 Valentine’s testimony was similar to such complaints, it follows 20 that 21 testimony.”). the ALJ also (AR 21). Indeed, gave Accordingly, the ALJ properly germane Leon, 874 F.3d at 1134 reasons for rejecting her 22 23 In sum, the ALJ offered clear and convincing reasons, 24 supported by substantial evidence in the record, for his adverse 25 credibility findings. Accordingly, because substantial evidence 26 27 28 25 1 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 2 is required.8 3 4 B. The ALJ’s RFC Assessment Is Supported By Substantial Evidence 5 6 Plaintiff contends that the ALJ’s RFC assessment failed to 7 take into account Plaintiff’s lumbar spondylosis and herniated 8 discs with stenosis, sleep apnea and morbid obesity. 9 at 12-13; see also id. at 8-9). (Dkt. No. 21 The Court disagrees. 10 11 “A claimant’s residual functional capacity is what he can 12 still do despite his physical, mental, nonexertional, and other 13 limitations.” 14 Cir. 1989) (citing 20 C.F.R. § 404.1545). 15 requires the ALJ to consider a claimant’s impairments and any 16 related symptoms that may “cause physical and mental limitations 17 that affect what [he] can do in a work setting.” 18 §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC, 19 the 20 functional capacity assessments made by consultative examiners, 21 State ALJ Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th considers Agency all physicians relevant and evidence, medical An RFC assessment 20 C.F.R. including experts. 20 residual C.F.R. 22 23 8 24 25 26 27 28 In his third argument, Plaintiff contends that the ALJ improperly relied on the VE’s response to the ALJ’s hypothetical question that did not include the functional limitations testified to by Plaintiff. (Dkt. No. 21 at 13-14). However, because the ALJ properly discredited Plaintiff’s testimony and statements, he did not need to include them in his hypothetical question. See Osenbrock, 240 F.3d at 1165 (“It is . . . proper for an ALJ to limit a hypothetical to those impairments that are supported by substantial evidence in the record.”); accord Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015). 26 1 §§ 404.1545(a)(3), 2 416.945(a)(3); see also id. §§ 404.1513(c), 416.913(c). 3 4 The ALJ found that Plaintiff’s lumbar spondylosis, herniated 5 discs with stenosis, morbid obesity and sleep apnea were all severe 6 impairments. 7 the ALJ took into account Plaintiff’s obesity, his limited range 8 of 9 demonstrated degenerative changes at T12-L1 and L4-S1 with 2-3mm motion (AR 18). in his Moreover, in assessing Plaintiff’s RFC, lumbar spine the x-rays and MRI that 10 disc protrusions. 11 2013 12 maneuvering abilities. 13 Plaintiff 14 Plaintiff to light work in deference to Plaintiff’s subjective 15 symptoms that were not inconsistent with the objective evidence. 16 (AR 20-21). and May would (AR 20-21). and and June be Nevertheless, examinations in June 2014 demonstrated (AR 20-21). capable of adequate gait and While Dr. Sedgh opined that medium work, the ALJ limited 17 18 Plaintiff appears to confuse conditions with disabilities. 19 For example, a “person can be depressed, anxious, and obese yet 20 still perform full-time work.” 21 868 (7th Cir. 2005). Gentle v. Barnhart, 430 F.3d 865, As the Seventh Circuit explained: 22 23 Conditions must not be confused with disabilities. The 24 social not 25 concerned with health as such, but rather with ability 26 to engage in full-time gainful employment. 27 is obscured by the tendency in some cases to describe 28 obesity as an impairment, limitation, or disability. security disability 27 benefits program is This point It 1 is none of these things from the standpoint of the 2 disability program. 3 but once its causal efficacy is determined, it drops out 4 of the picture. 5 disability benefits is so obese as to be unable to bend, 6 the 7 claimant’s capacity for work. issue is It can be the cause of a disability, If the claimant for social security the effect of that inability on the 8 9 Id. (citation omitted) (emphasis in original); accord Cody v. 10 Colvin, No. 16 CV 5664, 2017 WL 218802, at *3 (W.D. Wash. Jan. 19, 11 2017). 12 13 Other than his own subjective allegations, which the ALJ 14 properly discredited, Plaintiff does not demonstrate how his lumbar 15 spondylosis, herniated discs with stenosis, morbid obesity and 16 sleep apnea limits his ability to work. 17 276 F.3d 453, 459 (9th Cir. 2001) (“It was [claimant’s] duty to 18 prove that she was disabled.”) (citing 20 C.F.R. § 404.1512(a)); 19 see also Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990) 20 (“The burden of establishing disability is . . . on the claimant, 21 who must prove that she is unable to return to her former type of 22 work.”). 23 impairments, which the ALJ found to be severe, limit his functional 24 capacity more than the limitations found by the ALJ. 25 the ALJ’s RFC assessment is supported by substantial evidence. See Mayes v. Massanari, He cites to no medical evidence indicating that these Accordingly, 26 27 28 Plaintiff contends that the ALJ failed to consider “the symptoms associated with Plaintiff’s obesity and its limiting 28 1 effects, individually and in combination with his other medical 2 impairments, on his ability to perform physical and mental work- 3 related activities, as required by SSR 02-1p.” 4 9). To the contrary, the ALJ found that Plaintiff’s morbid obesity 5 was a 6 including its impact on his ability to ambulate, in assessing the 7 RFC. 8 evidence of any additional functional limitations arising from his 9 obesity that the ALJ overlooked. severe impairment (AR 18, 21). and considered (Dkt. No. 21 at Plaintiff’s weight, Plaintiff has failed to identify any probative Burch v. Barnhart, 400 F.3d 676, 10 684 (9th Cir. 2005) (“Burch has not set forth, and there is no 11 evidence in the record, of any functional limitations as a result 12 of her obesity that the ALJ failed to consider.”). 13 14 VIII. 15 CONCLUSION 16 17 Consistent with the foregoing, IT IS ORDERED that Judgment be 18 entered AFFIRMING the decision of the Commissioner. The Clerk of 19 the Court shall serve copies of this Order and the Judgment on 20 counsel for both parties. 21 22 DATED: December 1, 2017 23 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 29

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